By CHRIS MCGANN, SEATTLE POST-INTELLIGENCER REPORTER

Published 9:00 pm, Monday, March 29, 2004

After more than a decade of failed bids for political asylum, a heartbreaking revelation that his lawyer failed him and 10 months behind bars, an Edmonds grocer got a ray of hope yesterday.

During a hearing in Seattle before the 9th U.S. Circuit Court of Appeals, the harsh skepticism long focused on Safouh Hamoui -- a former Syrian pilot who came to this country in 1992 -- suddenly shifted to the government.

The three-judge panel blasted the Justice Department's handling of the immigration case and openly supported key contentions being raised by Hamoui's new lawyers.

The panel said it was clear that Hamoui had not received competent legal assistance. The appeals court also indicated that the Board of Immigration Appeals should have considered testimony outlining the dangers the Hamoui family faces if returned to Syria.

The bureau also misapplied the standard for "likely fear of torture" as outlined by the International Convention Against Torture, the appeals panel said.

Throughout the hourlong hearing, Hamoui, 54, maintained a stoic composure as he sat between his wife and daughter, who also are facing deportation.

Asked later how he felt about his battle to free himself from Attorney General John Ashcroft's post-9/11 initiative to round up and deport illegal immigrants, particularly those from Middle Eastern countries, Hamoui took the high road.

"I still believe in America. I still believe in justice, and I still believe justice will prevail," he said. "And I hope today is that day."

The Hamoui family came to the United States with short-term tourist visas. Safouh Hamoui, who was a military pilot for former Syrian President Hafez al-Assad, requested asylum for himself and his family out of fear of political persecution if they returned to their homeland.

The family's attorney, Bernice Funk, argued yesterday that under the International Convention Against Torture, the family should not legally be forcibly returned to Syria -- where they face possible imprisonment, torture or even death.

Funk maintained that the government has not evaluated evidence supporting that claim, despite being required to do so.

That evidence included statements from experts who outlined the dangers the family likely would face, including one from Ellis Goldberg, chairman of the Middle East studies program at the University of Washington.

Goldberg quoted a 2001 Amnesty International report that said: "Torture is so routine (in Syria) that detainees are commonly tortured as soon as they arrive in Tamur, in what is known as the 'Haflat al-istaqbal,' or 'reception party.'"

"I have no doubt that if forced to return to Syria, Mr. Hamoui will be immediately detained," Goldberg wrote.

"His residence in the U.S. would be considered prima facie evidence that he had carried out activities at the instigation of a foreign power. Given the routine use of torture in Syria, there are 'substantial grounds' for believing that he will be subjected to torture.

"In fact, based on Mr. Hamoui's career as a pilot for the president of Syria and other high-level government officials, there is no question in my mind that if sent back to Syria, it is 'more likely than not' that Mr. Hamoui as well as his family will be detained and tortured, if not killed."

MacLachlan said the government looked into those concerns and concluded "there is nobody out there -- anywhere -- who intends to harm Mr. Hamoui."

The fact that Hamoui was detained but not tortured by the Syrian government before coming to the United States is evidence of that, MacLachlan said.

But the appeals court judges openly disputed that assertion, asking several times why the fact that Hamoui's asylum case is well-known in the Arab world might not undermine a safe return.

Afterward, Nadin Hamoui, 22, was relieved that the family was finally able to present evidence of the risks of deportation.

"This is the first chance we've ever had," she said. "We've never had our day in court."

The case has, in fact, been in court on many occasions, including a failed appeal in 2000 before another 9th Circuit panel. But the family felt the problems stemmed from the failures of an incompetent attorney.

Yesterday, presiding judge Kim Wardlaw sided with the Hamouis on that point.

"I think the ineffective assistance is clear," Wardlaw said.

The courtroom was packed with people who came to support the Hamoui family. Among them was Elaine Hickman of North Seattle.

"It's a very sad story," she said.

The Hamouis' arrest two years ago attracted Hickman's attention because it coincided with many other policy changes implemented by the Bush administration in the aftermath of the 9/11 attacks.

Tracking the Hamoui case is her "way of relating to what's happening in the whole country," Hickman said. "It makes me ashamed. It's just a shocking example of how we are treating immigrants right now."

A Mennonite, Hickman said attending the hearing yesterday was an opportunity to counter those who appear to be bent on demonizing Muslims.

"I want them to know that they are supported by people who are Christian," she said.

After the hearing, Nadin Hamoui said she was nervous but optimistic. If the appellate court rules in the family's favor, the case would be sent back to a lower court with instructions to reconsider the case in light of the conventions against torture. A ruling is expected later this year.